MARPE v. Capital Area Community Health Plan Inc., Appellant. (1998)

Appeal from an order of the Supreme Court (Ceresia Jr., J.), entered May 29, 1998 in Rensselaer County, which denied a motion by defendant Capital Area Community Health Plan Inc. to enforce a settlement agreement.

Plaintiff, an employee of defendant Capital Area Community Health Plan Inc. (hereinafter CHP), commenced this action seeking damages for sexual harassment and negligence arising out of psychiatric treatment provided by her supervisor, defendant Paul Dolmetsch.   Thereafter, while attending a pretrial deposition with her attorney, plaintiff and CHP entered into an on-the-record oral stipulation of settlement whereby plaintiff agreed to execute a written release and confidentiality agreement in exchange for CHP's agreement to pay her a specified sum of money.   When CHP forwarded the proposed settlement papers to plaintiff, however, she refused to sign them.   Supreme Court denied CHP's ensuing motion to enforce the stipulation of settlement and this appeal ensued.

 We affirm.   Pursuant to CPLR 2104, a stipulation of settlement is not enforceable unless it is made in open court, reduced to a court order and entered, or contained in a writing subscribed by the parties or their attorneys.   As the stenographic record created at the deposition was made outside the presence of a judge, it is insufficient to satisfy the requirements of CPLR 2104 (see, Conlon v. Concord Pools, 170 A.D.2d 754, 565 N.Y.S.2d 860;  see also, Matter of Dolgin Eldert Corp., 31 N.Y.2d 1, 334 N.Y.S.2d 833, 286 N.E.2d 228).   Moreover, because there is no indication that CHP was mislead by the oral stipulation or detrimentally relied upon its terms, plaintiff is not estopped from asserting noncompliance with CPLR 2104 as a ground to preclude enforcement of the oral stipulation (see, Bedrosian v. McCollum, 209 A.D.2d 778, 617 N.Y.S.2d 997;  Smith v. Lefrak Org., 142 A.D.2d 725, 531 N.Y.S.2d 305).   Accordingly, we find that Supreme Court properly denied CHP's motion to enforce the stipulation of settlement.

ORDERED that the order is affirmed, without costs.

CARPINELLO, J.

MERCURE, J.P., and PETERS, SPAIN and GRAFFEO, JJ., concur.